Prenuptial Agreements

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What Are Prenuptial Agreements and Do I Need One?

Before marriage, a written contract called a prenuptial agreement may be created. This agreement usually includes the property each individual owns and specifies what each person’s property rights will be after the marriage. The Uniform Premarital Agreement Act (UPAA) has applied to CA prenups since 1986.

Do I Need a Prenup?

  1. If you were previously married with children and want to guarantee separate property to those children will be passed to them when you’re deceased, a prenup can be used. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the children involved.
  2. A couple may also want to use a prenup to clarify their financial rights and responsibilities during marriage.
  3. Prenups may also prevent any arguments in a divorce. Specifications of how property will be divided will be made, and whether or not either spouse will receive any allowance.
  4. One can also get protection from debts. Prenups can be used to protect spouses from each other’s debts.

What Are the Requirements For Prenups?

General contract law applies to prenups, meaning there must be:

  • valid consent (an individual must have the mental capacity to consent)
  • consent may not be fraudulent, or be the result of inappropriate influence.

Additionally, per the UPAA, prenups made after 2002 will only be enforced if the spouse:

  • received complete information about property and finances;
  • had seven days to review the prenup; and
  • was represented by a lawyer (there are some exceptions to this requirement in the UPAA).

What Will Happen If I Don’t Make a Prenup?

If a prenup isn’t made, your states’ laws will determine who owns the property during marriage and what happens to it at the time of death or divorce. State law may even have a say in what happens to some of the property you owned before you were married. In California, each spouse or partner owns one-half of the community property. And, each spouse or partner is responsible for one-half of the debt. Community property and community debts are usually divided equally.

In the absence of a prenup, a spouse usually has the right to:

  • share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death;
  • incur debts during marriage that the other spouse may have to pay for; and
  • share in the management and control of any marital or community property, sometimes including the right to sell or give it away.

Every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.

However, because courts still look carefully at prenups, it is important to negotiate and write up an agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, you’ll want to have separate lawyers review it and at least briefly advise you about it — otherwise a court is much more likely to question its validity.

Please contact the Santa Barbara County Bar Association Lawyer Referral Service to find a lawyer to help – (805) -569-9400.

California Workers’ Compensation vs. Federal Workers’ Compensation

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California Workers’ Compensation Basics

All California employers must have workers’ compensation insurance to provide workers’ compensation benefits to employees who have employment-related injuries and illnesses. The insurance company will pay for the employee’s medical treatment, lost wages and at times, compensation for a permanent impairment and job retraining caused by a work-related accident or illness due to conditions of the job. These can include a one-time accident, cumulative injuries (injuries caused by doing the same motion over and over), and illnesses arising out of the job environment or work tasks. In most instances, the injured employee receives insurance benefits, no matter who was at fault. Compensation may be denied if the employee was violating company policy or a law, or the injuries were self-inflicted or if the employee was not on the job at the time of the injury.

How to File?

An employer should be notified as soon as an injury occurs or a work-related illness has developed unless there is a medical emergency. In the case of a medical emergency, medical treatment should be sought first. An injury needs to be reported within 30 days or you may lose your right to collect benefits.

After treatment has been obtained, a DWC (Division of Workers’ Compensation) Form 1 should be completed and given to the employer, who will in turn give it to their workers’ compensation insurance company. An Application for Adjudication of Claim also needs to be filed within one year of the injury to officially file the worker’s comp claim. There are other forms that need to be filed as well. More information on how to file a claim can be found here.

Federal Workers’ Compensation Act (FECA) Basics

Am I Eligible?

All federal government employees are covered under FECA regardless of the time of service or type of work performed and only if they are employed by the federal government such as the post office, not a private government contractor. A private company will follow the state’s workers’ compensation program. Federal workers’ compensation may be denied if the injury was caused by intoxication or under the influence of a non-prescription drug, if there was intent to harm others or if there was willful misconduct.

An injury or illness that is covered by FECA must occur while performing work-related duties or a disease that arose due to working conditions. This can include injuries occurring while traveling or working offsite. FECA does not cover injuries and diseases that arise as a result of activities outside the course and scope of your employment. Activities outside employment include commuting to and from work, recreational outings, and activities for personal reasons. FECA also provides benefits to surviving family members for workers that die on the job while doing work-related activities.

Do I Need an Attorney?

If your FECA workers’ compensation claim is denied, your claim is complex, or your injury was serious, you should consider talking to an attorney who is experienced in FECA workers’ compensation law. Although an attorney is not necessary to obtain workers’ compensation benefits, an attorney can be helpful in guiding through the process and ensuring all of the benefits are received.

Please contact the Santa Barbara County Bar Association Lawyer Referral Service to find a lawyer to help – (805) -569-9400.

What You Need to Know About A Product Liability Case in California

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What is a product liability case?

In California, an individual or entity that designs, manufactures or sells a defective product is strictly liable for injuries resulting from use of that product, even without the presence of negligence. The defects can be warning defects (lacked warning labels), manufacturing defects (manufactured in the wrong way) and design defects (injuries from the design of the product).

Definitions in a product liability case:

Negligence: The plaintiff must prove that the manufacturer had a duty to provide a safe product and that duty was breached (please see above with respect to California cases).

Strict liability: the plaintiff can bring a products liability claim concerning any unsafe and dangerous product regardless of whether the manufacturer or seller was negligent. The person that gave the user the product would be strictly liable even if they were not the person or entity who was responsible for causing the products defect.

Breach of warranty: When products have certain warranties provided by the manufacturer and those warranties fail and cause injury, the plaintiff can bring a breach of warranty lawsuit.

What is needed to prove a product liability case?

To prevail on a claim for products liability in California a plaintiff must prove four things:

  1. That the defendant designed, manufactured, distributed or sold a defective product;
  2. That the product contained the defect when it left the defendant’s possession;
  3. That the plaintiff used the product in a reasonably foreseeable manner; and
  4. That the plaintiff suffered harm as a result of the defect

Do I need a lawyer?

A personal injury lawyer may be required if you believe you have been injured by a defective product.  Please contact the Santa Barbara County Bar Association Lawyer Referral Service to determine if you have a case and if so, to find the right lawyer to help.

I need legal help. Where can I find help via the Internet?

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Google

  1. A quick Google search using main keywords can help you find the assistance you need or educate you on how to resolve an issue.
    • Example 1: (How do I establish a conservatorship?) If a conservatorship needs to be established, search “conservatorship California” and you will be directed to information on when a conservatorship is necessary and step-by-step information on how to complete the forms.
    • Example 2: (Have I been wrongfully terminated?) If you are unsure if you have been wrongfully terminated, you can search “wrongful termination California”. There you will find what constitutes a wrongful termination and what legal action can potentially be sought.
    • Example 3: (I am in the process of a divorce. What do I do?) If you are in the process of a divorce, you can search “divorce laws in California” and you will find information about the divorce process on the California Courts site along with child support information, annulments, property during a separation, etc.
    • Example 4: (What are my rights as a tenant/landlord?) If you would like to know more about your rights as a tenant or a landlord, search “tenant/landlord rights California” or visit https://www.santabarbaraca.gov/services/home/rhm/resources/mediation.asp to view their landlord/tenant’s rights handbooks.
    • Example 5: (Have I reached the statute of limitations?) To define, a statue of limitations is a law that sets the maximum time after an event within which legal action may potentially be sought. In a personal injury situation, legal action may potentially be sought within two years from the date of injury. In a libel or slander situation, the statute of limitation is one year from the date of injury. For a medical malpractice issue, the statute of limitations is within one year after the plaintiff discovers the injury or within three years of the date of the injury, whichever comes first.

5150 Hold 101

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What is a 5150 hold?

A 5150 hold allows an individual with a mental illness to be involuntarily held for a 72-hour psychiatric hospitalization. The hold may not last for the full 72 hours, but the hospital has the legal right to determine the length of stay within that 72-hour period.

Section 5150 of the California Welfare and Institutions Code states that any California peace officer can insist on the confinement of a person who is exhibiting “probable cause” to make him or her believe that the behavior called to their attention is the “result of a mental disorder, a danger to others, or to himself or herself, or gravely disabled.” Each state has their own version of the hold, though California’s 5150 provision allows the state to take a person in no matter where his or her primary residence is.

What makes someone eligible for a 5150 hold?

There are three conditions that can make someone eligible for a 5150 hold. However, only one condition needs to be met to involuntarily hold someone. Such conditions must be present in the context of a mental illness. The three conditions are:

  1. If the person is a danger to him/herself: For example, someone who is suicidal and/or has a plan to do harm him/her self falls into this category.
  2. If the person is a danger to others: Someone who is a threat to the safety of others.
  3. If the person is gravely disabled:
    1. Adults – The person’s mental illness prevents him/her from being able to provide for shelter, clothing and/or food, and they have no one to assist. The homeless may not necessarily be eligible if they are able to seek housing when weather demands. Such inabilities must stem from the psychiatric condition.
    2. Minors (Under 18)- The person is unable to provide for his/her food, clothing and/or shelter even if they are being provided. An example of this may be someone not eating because they believe they are trying to be poisoned.

What Are My Rights in a Mental Health Facility?

You can find out your rights by reading the linked handbook below:

http://www.dhcs.ca.gov/services/Documents/DHCS_Handbook_English.pdf

Family Law Basics

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Family law can be a stressful and emotional time for those going through a divorce or separation. Most importantly, parents who have minor children together are often required to undergo the ordeal of deciding on custody rights, visitation rights, and child support, making the process taxing for both parties. Here is some of the basic background information on issues regarding Family Law matters:

Divorce: The separation of a legal spousal relationship, commonly known as the separation of a marriage, is also recognized as the separation of civil unions or domestic partnerships.

In the state of California, divorce proceedings do not require proof of reasoning for the divorce, making it a “no-fault” state. Parties may cite “irreconcilable differences” or “irreparable breakdown of marriage” when filing divorce papers. Additionally, finalized divorce decrees may not be granted until 6 months after the papers are received by the respondent or the respondent’s first appearance in court. Judges may also postpone divorce proceedings for up to 30 days if there is a reasonable possibility of reconciliation.

Child Custody: In the state of California, child custody laws refer to two types of custody:

Legal Custody: This refers to the parent’s ability to make decisions that deal with child’s welfare, including health and education decisions.

Physical Custody: This refers to the physical residence of the child

The most important thing to recognize in child custody laws is that they are created in the child’s best interests. The laws look at six important aspects, including the age and health of the child, emotional ties between parent and the child, ability of parents to care for the child both emotionally and physically, history of violence or substance abuse, and the child’s ties to school home, or community (statelaws.findlaws.com). If neither parent is a reasonable option for a child, there is also the possibility of a Third Person Custody:

Third Person Custody: If the courts determine that either parent’s custody would be harmful to the child, custody may be awarded to someone who has requested custody of the child and that the court finds suitable in the child’s best interests.

Family law matters can be complicated and difficult to get through. If you believe you are in need of an attorney to help you navigate through legal matters, please contact the Santa Barbara Lawyer Referral Service at 805.569.5511